The Need for Speed (or Not): The Saga of the Bozeman Municipal Watershed Project

Yesterday we had a discussion about what kind of evidence we might use to determine that there are, or are not, problems with the current FS NEPA-Litigation process. Another way to see if there are problems is to ask people directly “what are the problems you perceive?”  The EADM Roundtables that the Forest Service conducted a few years ago received much input about the problems people saw, as well as suggestions as to what to do about them.


Here’s an op-ed by Jack Smith and Holly Fretwell from last week:

After more than 15 years of delay, the Bozeman Municipal Watershed Project will finally move forward this spring—a victory for the U.S. Forest Service, wildfire resilience, and above all, the people of Bozeman.

And they specify what they see as the downsides of litigation (note, not NEPA):

But litigation has at least three serious downsides. First, it’s slow. And for a city like Bozeman, delays carry a potentially enormous cost. As appeals have played out, Bozeman has continued to face real risk from wildfire, illuminating the need for quicker processes to resolve conflict and develop collaborative forest management solutions.

Litigation also costs the Forest Service, taking time and dollars away from forest management. In a day and age when wildfires consume an ever-larger portion of the agency’s budget, dollars that remain would be most wisely spent getting ahead of wildfire risk rather than defending projects that aim to do so.

Last, the added delays and uncertainty caused by litigation can hold back partners, like the city of Bozeman, who want to invest in wildfire resilience but who need to know what the Forest Service will do in order to plan complementary work.

They acknowledge that litigation had value:

These repeated legal challenges have ultimately deepened the project’s environmental analysis and assuaged concerns about the project’s impacts, particularly on endangered species.

I assume that somewhere along the line, the proposal itself had changed for the better, not just the documentation.

I think we’re all familiar with their first and second points. What I think hasn’t been explored much, though, is the impact of Litigation-Induced-Uncertainty (about time, place, and if at all) on the efforts of other entities. Clearly this has been problematic for people who work in the timber industry, and they have been pretty open about that. But what’s it like to have the Forest Service trying to do something for 15 years for those potentially impacted from fire, sediment, and so on, and other landowners who want to plan what to do?

In a recent report by PERC, Fix America’s Forests, we suggest multiple ways Congress can help the Forest Service avoid long delays without sacrificing litigation’s important role. A good place to start would be to clarify how courts should decide whether to block forest restoration projects while deficiencies revealed by litigation are fixed.

Currently, when a court finds that a project’s environmental analysis is insufficient in some way, it has to decide whether to block the project or to allow it to proceed while the agency performs additional study. Congress could clarify how courts should weigh the risk of delay versus its potential benefits when making this decision. Congress could also require that challenges to forest restoration projects be filed quickly after those projects are approved, giving the Forest Service and partners early notice of whether litigation will affect a particular project.

My bold.. do you think it’s possible to agree that speeding up the process would be a good thing? Is 15 years to plan a 4,700 (?) acre fuel treatment project too long? And if so, what are your ideas for speeding things up?

One more thought: if reducing wildfire extent helps with climate change, and if dealing with large fires is adapting to climate change, then wouldn’t we want to speed up climate mitigation and adaptation if possible?

6 thoughts on “The Need for Speed (or Not): The Saga of the Bozeman Municipal Watershed Project”

  1. A few points around the article, topic, and question in general:

    -I think the fundamental point is sound, specifically, the point that 15 years is too long. That’s the length of time associated with an entire forest plan, as a rough comparative benchmark. Taking the entire time period in which a forest plan is supposed to be in effect to plan a single project, even if other projects are being planned in tandem, is indicative of either a particularly dysfunctional project or a particular use (abuse?) of the objections / appeals / litigation system.

    -Re: “if reducing wildfire extent helps with climate change, and if dealing with large fires is adapting to climate change, then wouldn’t we want to speed up climate mitigation and adaptation if possible?” I would think so! What opposition may reflect is a credibility problem with the practice of forestry – i.e. groups will oppose something that could be a boon for climate change resiliency because they see such arguments being pushed as a trojan horse of sorts, and don’t want to buy in to what they would see as science that has been conscripted in the service of industry (at least I think that’s how its seen, not necessarily how I see such arguments)

    Final quibble re: budget as a reason:
    – “Litigation also costs the Forest Service, taking time and dollars away from forest management. In a day and age when wildfires consume an ever-larger portion of the agency’s budget, dollars that remain would be most wisely spent getting ahead of wildfire risk rather than defending projects that aim to do so.” How well studies have the costs of litigation on the FS budget been studied? I know of studies on litigation from the process side (i.e. what gets litigated) but not much about what it costs the agency.

    I think an important point to keep in mind re: wildfires consuming ever larger slices of the FS budget is that the FS budget is not a law of nature, it *could* be increased, much like wildland firefighting *could* be done less wastefully when it comes to the costs of, say, on one hand deploying type one teams to things that likely don’t need it (e.g. prepositioning type multiple one teams because the PL is high, even if fire activity is low) or on the other hand not allowing lightning fires “managed for resource benefit” also being treated as full suppression for budgetary purposes, with all of the monetary implications that entails. For what it’s worth I agree with the piece in the sense that defending projects can ultimately distract from doing the work in the first place, but the budgetary argument (namely, the idea that it’s just inevitable that the fire budget will presumably continue to gut the rest of the FS) always bothers me – it doesn’t have to be like that, even if wildland fire necessarily stays really expensive due to the equipment, personnel safety, etc!

    Given that the report is out of PERC, and they have received heavy $$$ from the Koch bros in the past… unlikely to see any calls for investing a greater amount of public funds in the FS

  2. As has been pointed out on this blog numerous times in the past, PERC is a far-right win private property rights group that gets money from the Koch’s and Exxon-Mobile and has a long, well-known history of supporting private, corporate take-over of federal public lands. PERC also supports industry-friendly “reforms” to our nation’s bedrock environmental laws.

    Since the oped is written by PERC’s research assistant and PERC’s research fellow I believe that fact should’ve been clearly pointed out by Sharon in the original post, especially in the interest of honesty and transparency. PERC has a super far right wing agenda and that’s crystal clear to all who pay attention to these issues.

    How much has the federal timber sale program cost the agency (especially after they cut down most all of the easily accessible old-growth)? How much has the federal livestock grazing program cost the U.S. Forest Service? How much has watershed restoration from a 370,000 mile road system cost the agency? How much has it cost local communities that may rely on national forest system lands for drinking water? How much have invasive species cost the agency? How much has hardrock mining, coal mining, fracking, and oil and gas extraction cost the agency? How much has it cost our planet, clean water, clean air, and wildlife? Maybe PERC could do some number crunching.

    More information about the Bozeman Watershed Project that was previously featured on this blog can be found here and here.


    According to Cottonwood Environmental Law Center, all of the trees in this picture that are not painted orange would be cut down as part of the Bozeman Watershed logging project. Photo by Cottonwood Environmental Law Center.

    • Matthew, PERC is so far-right that they see promise in Biden’s 30 by 30 proposal. Here’s a bit about PERC from its web site:

      “PERC is a research institute dedicated to promoting conservation by exploring how voluntary trade can produce positive environmental outcomes. We are committed to exploring the ideas of free market environmentalism, and this research is the foundation of PERC. Our current initiatives focus on market approaches to wildlife conservation and improving public lands management. This work then informs conservation policy and practice.”

      You might be interested in its “Conserving Migration Corridors in the Greater Yellowstone Ecosystem” project, where PERC says “Creating incentives can make migratory wildlife a benefit, not a burden, for the private landowners who provide critical habitat.”

  3. My solution to a municipal watershed project (like the one for Bozeman, MT) is to design the NEPA process with a “get in, get out” strategy. This is accomplished upfront by a laser-focused Purpose and Need statement, premised on a robust public engagement that addresses issues/concerns when designing the Proposed Action.

    I have been challenged before by conservationists/environmentalists that my suggested approach guts the strength of the NEPA process: namely, issue management and alternative development. I disagree, especially when the project has a partner in a municipality that anxiously waits for the federal government to work through its analysis and disclosure process. The upfront collaboration is leveraged to keep the project focus narrow as well as expedite analysis.

    The trick for FS line officers is to not get distracted by other management opportunities that could be simultaneously addressed with the municipal watershed project. As soon as additional side projects get added, the whole project starts to sag under its own weight, leading to delays and starting the vicious cycle of changing personnel, leaders, and budget availability.

    • I completely agree. The problem is the agency wants to add in side projects so they can get the NEPA done on those and then implement. Line officers should stay focused.

  4. I agree with Tony’s assessment. I would add that there is a simple forumula for litigation success with NEPA: do what the (potential) plaintiffs want for analysis and procedure. They are required to show their cards during the NEPA process and the administrative objection process, and if the agency takes them seriously and explains the agency response they are unlikely to be found arbitrary and capricious. That may not stop them from filing a lawsuit, but it normally won’t take very long for courts to dispose of it.

    This project was enjoined in 2013 for failure to comply with ESA procedures (NEPA compliance was upheld). That’s a little more problematic because ESA consultation is not a public process and it typically is not addressed through administrative objections. But the consultation process has a required timeline and shouldn’t drag on for years if it is given the priority warranted by the arguments made here. Litigation is not the reason for this taking 15 years. It ultimately has to come down to the agency not managing in a manner consistent with its stated importance.

    Then there is the proposal to stack the judicial deck against enjoining the project, and we should always be wary of that. In particular, the balancing of the interests that court does is different for NEPA and ESA cases: at-risk species get more weight in the latter. The court in the 2013 opinion provided an extensive discussion of how it decided to enjoin the project, and it found that the Forest Service was unable to show that the project would not cause irreparable harm to lynx critical habitat. I don’t think the PERC authors have made the case that we should let the agency off the hook for protecting listed species.


Leave a Comment